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Saturday, September 1, 2012

Federal prosecutors closed an exhaustive four-year FBI criminal investigation and grand-jury probe targeting Maricopa County Sheriff Joe Arpaio, former County Attorney Andrew Thomas and their top deputies, saying there will be no indictments.

Ann Birmingham Scheel, acting on behalf of U.S. Attorney John Leonardo, announced the decision in a three-paragraph news release distributed at 5 p.m. Friday. Neither she nor anyone else from the office was available to comment.

However, in a letter to Maricopa County Attorney Bill Montgomery, Scheel listed the allegations that were investigated -- civil-rights violations, misuse of public money, perjury -- and said prosecution was declined because of a lack of evidence or an insurmountable burden of proof.

Arpaio, a Republican who is running for a sixth term in November, said he anticipated the outcome: "I never had any doubt. ... Once again, I send my appreciation to the federal government for their hard work in clearing my office.

"If I did something wrong, there would be indictments floating all over the place," Arpaio said.

Paul Penzone, Arpaio's Democratic challenger, said the outcome is hardly vindication, nor does it exonerate Arpaio for "lost dollars, failed investigations and at best questionable practices."

"This is not something that law enforcement should celebrate, it's something of great concern," said Penzone. "There are obvious failings in the Sheriff's Office. The fact that they did not rise to a level of criminal indictment does not lessen that they are failings."

Thomas, who resigned as county attorney and was later disbarred for ethical misconduct, issued a written statement saying, "The Justice Department acknowledged the obvious: A jury of citizens simply would not indict a prosecutor who had done his job. ... The real losers in the political witch hunt that just ended are the people of Arizona. Prosecutors no longer attempt to fight corruption or illegal immigration in Arizona because they fear being targeted and disbarred."

In her letter to Montgomery, Scheel said the "comprehensive investigation" failed to uncover sufficient evidence for criminal charges, which require a judge or jury to find defendants guilty beyond reasonable doubt.

She emphasized that her inquiry has no bearing on a racial-profiling case filed against the Sheriff's Office in May by the Justice Department's Civil Rights Division. A verdict in that case, which focuses on alleged discriminatory practices in county jails and in sweeps aimed at undocumented immigrants, would be based on the civil standard, a preponderance of evidence, rather than more rigorous "beyond a reasonable doubt" standard used in criminal cases.

Mitchell Rivard, a DOJ spokesman, echoed that point. "The announcement of the U.S. Attorney of the closure of the criminal case has nothing to do with the civil case that the department has brought," he said.

The federal investigation began in 2008 after former Phoenix Mayor Phil Gordon and other local officials expressed concerns about Arpaio abusing his power to the local FBI head. Nearly two years later, the probe expanded when, at the request of Maricopa County Supervisors, the federal agents were cross-deputized to investigate potential state crimes. Among the issues investigated and the prosecutorial conclusions:

Credit cards: County supervisors sought a probe of possible misuse of so-called P Cards used by members of the Sheriff's Office. Scheel said investigators found "no evidence or allegation of MCSO employees stealing county funds," although financial records indicated expenditures were not properly documented.

Jail funds: County supervisors reported evidence that the Sheriff's Office was using up to $84 million earmarked for jails to pay expenses and salaries not related to the detention program. Scheel said because there was no evidence that any sheriff's employee personally profited from the "misspending," prosecutors would not be able to prove criminal intent.

Perjury: Thomas and one of his attorneys, Lisa Aubuchon, were accused of committing perjury when they asked a sheriff's official to swear out a complaint accusing Superior Court Judge Gary Donahoe of hindrance, obstruction and bribery in an attempt to prevent him from holding a hearing tied to the appointment of special prosecutors to work county corruption cases. Though the state Bar disbarred Thomas and Aubuchon, Scheel said federal prosecutors would not be able to prove they knowingly lied in the court papers.

Civil-rights violations: Scheel concluded that it "is not enough to show that Judge Donahoe was subjected to conduct that was abusive or even unconstitutional" because the Justice Department also would have to show beyond reasonable doubt that Thomas and Aubuchon specifically intended to violate his rights.

Scheel said investigators also considered charges against Thomas and Aubuchon for depriving Donahoe of his profession or livelihood, but could not meet "the heavy burden of proof necessary to obtain a criminal conviction."

Moreover, Scheel suggested, civil court and the state Bar are appropriate venues to deal with Thomas' alleged abuse of power for political purposes. "The criminal process is not the proper vehicle to address the conduct that (was) brought to our attention."

Reaction to the decision was swift and furious.

A spokesman for the Arizona Republican Party, on behalf of chairman Tom Morrissey said, "It is good to see this witch hunt has come to an end. I find it bizarre when a man is hounded for doing his job by those who refuse to do theirs."

However Colorado attorney John Gleason, who conducted the ethics investigation of Thomas and Aubuchon for the state Bar, said he was disappointed in federal prosecutors.

"We believe that the work that we did and the testimony that was presented presents a strong case that crimes were committed," he said.

Aubuchon expressed relief that the probe was over: "I'm glad they understand what perjury is -- unlike the Bar witch hunt that ensued -- and that they realized that this was just disagreement about the charges."

Randy Parraz, head of Citizens for a Better Arizona, which launched a "Joe's Got to Go" campaign to defeat Arpaio in November, said he was disappointed in the outcome.

"People's lives have been damaged and hurt and violated by the sheriff, and it is unfortunate that they are going to walk away and not pursue any of these things," he said. "It sends the wrong message that they haven't done anything wrong, which serves him (Arpaio) well in an election year."

In addition to the still outstanding Justice Department civil-rights complaint, the Sheriff's Office faces a lawsuit filed by Manuel de Jesus Ortega Melendres, a Mexican tourist who was arrested and detained for nine hours while visiting the U.S. legally. Melendres' allegation of racial profiling became a class-action lawsuit covering every Latino driver stopped by sheriff's deputies in the past five years. Plaintiffs and defendants submitted closing arguments earlier this month, but U.S. District Judge Murray Snow has not yet reached a verdict.

Arpaio and Thomas also were defendants in 10 federal lawsuits filed by elected county supervisors, county administrators and retired judges, four of which are still pending.

The lawsuits stemmed from so-called government-corruption investigations in 2008 and 2009 by the sheriff and prosecutor, who had filed criminal cases and a federal racketeering lawsuit against the officials. Plaintiffs claim they were wronged by those investigations and charges.

Five plaintiffs obtained settlements ranging from $75,000 and $500,000 each.

A $975,000 settlement for county Supervisor Mary Rose Wilcox remains in dispute and has not yet been paid. If the court approves her settlement amount, the final payment would be well over $1 million with attorney's fees and interest.

As of April, Maricopa County had spent at least $3.2 million in litigation costs and settlements relating to these federal lawsuits, according to a Republic analysis of county spending.

Wilcox expressed shock at the U.S. attorney's decision, stammering for words. "I can't believe it. I can't imagine why they would do that, when there's so much evidence there, particularly from the Thomas case," she said. "I just am floored."

Retired Maricopa County Superior Court Judge Barbara Mundell said that a 2009 civil racketeering suit brought against her by Arpaio and Thomas was meant to "intimidate, harass, discredit and humiliate." Mundell, who settled her counter-lawsuit for $500,000 earlier this year, declined comment on the U.S. attorney's decision.

Former Maricopa County Attorney Rick Romley, who came out of retirement briefly to replace Thomas, worked with the U.S. Attorney's Office on the case, providing them records and access to key witnesses.

Romley said he was "truly puzzled" by the decision not to prosecute. "To say there was insufficient evidence, with the amount of information that we sent their way, sends a horrible message."

Susan Schuerman, executive assistant to Maricopa County Supervisor Don Stapley, suggested the decision is an injustice to all who see themselves as victims of an abuse of power by the sheriff.

"Having lived through this and witnessed all of these outrageous behaviors ... I'm shocked that no charges would be brought," she said. "It's all politics. I think this is bigger than they are (the Justice Department). I think the Justice Department was inept in their handling of this, and I have almost no faith left."

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